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Entrata, Inc. v. Yardi Systems, Inc.

United States District Court, D. Utah, Central Division

October 29, 2018

ENTRATA, INC., a Delaware corporation, Plaintiff,
v.
YARDI SYSTEMS, INC., a California corporation Defendants.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S RULE 72(A) OBJECTION TO MAGISTRATE JUDGE'S ORDER

          Clark Waddoups United States District Judge.

         Before the court is Defendant Yardi Systems, Inc.'s (Yardi) Rule 72(a) Objection, (ECF No. 303) to Chief Magistrate Judge Paul M. Warner's June 20, 2018 Memorandum Decision and Order. (ECF No. 287.) On May 21, 2018, Yardi filed a short form Motion to Compel Production of Technology Assisted Review (TAR) Information. (ECF No. 241.) On June 20, 2018, Chief Magistrate Judge Warner entered an order denying Yardi's Motion. (ECF No. 287 at 6.) Yardi moves the court for review of Chief Magistrate Judge Warner's ruling, arguing that it was both “clearly erroneous and contrary to law.” (ECF No. 333 at 5.) The court concludes that the Magistrate Court's ruling was neither clearly erroneous nor contrary to law. As explained below, the court DENIES Yardi's Objection.

         I. Background

         On December 21, 2016, the parties submitted a Stipulated Attorneys Planning Meeting Report. (ECF No. 79.) This Meeting Report contained a “Discovery Plan.” (ECF No. 79 at 5.) The discovery plan provided, in part, that “[d]iscovery of electronically stored information (‘ESI') should be handled as follows: The Parties are negotiating an ESI protocol which they intend to present to the Court by stipulation.” (ECF No. 79 at 7.)

         According to Entrata, “[i]n May of 2017, ” “the parties conferred on multiple occasions regarding the use of TAR.” (Cross Decl. ¶ 4, ECF No. 257 at 3.) According to Entrata, the parties met telephonically on May 12, 2017 “to negotiate aspects of the parties' document collection and production methodologies, including Entrata's proposed use of TAR.” (Cross Decl. ¶ 4, ECF No. 257 at 3.) According to Entrata, the parties did the same on May 16, 2017. (Cross Decl. ¶ 4, ECF No. 257 at 3.) On May 19, 2017, one of Yardi's attorneys, Jessica Walker, sent Entrata's attorneys “a list of questions . . . about the TAR process [Entrata] [was] planning to use.” (ECF No. 257-1 at 4.) On May 25, 2017, Mary Gilbert, an Entrata attorney, responded “we will be prepared to discuss your questions about the TAR process Entrata is planning to use on our call tomorrow.” (ECF No. 257-1 at 3.)

         According to both parties, on May 26, 2017, the parties met and conferred again regarding TAR. (See Cross Decl. ¶ 4, ECF No. 257 at 3; see also Walker Decl. ¶ 2, ECF No. 241-5 at 2.) According to Entrata, at this meet and confer, “Entrata's counsel answered questions from Yardi's counsel regarding Entrata's anticipated TAR process, including how Entrata intended to identify seed documents, whether Entrata would be filtering any data before using TAR, and how Entrata would handle documents that could not be categorized by TAR.”[1] (Cross Decl. ¶ 4, ECF No. 257 at 3.) According to Entrata, “Entrata's counsel also made clear that Entrata was using TAR as a culling mechanism and would be doing a linear review of documents identified by TAR as likely responsive to Yardi's discovery requests.” (Cross Decl. ¶ 4, ECF No. 257 at 3.)

         On May 26, 2017, the same day that the parties met and conferred regarding TAR, Entrata filed a Short-Form Motion for Entry of an Order Governing Discovery of Electronically Stored Information. (ECF No. 105.) As an attachment to this Motion, Entrata included a Proposed Order Governing ESI discovery. (ECF No. 105-1.) Entrata's proposed order contained the following provision:

The parties agree to work together in good faith to identify and negotiate a reasonable set of search terms and/or other search methodology to be used in searches for ESI. If the parties are unable to agree on a reasonable set of search terms or other search methodology within 30 days of the entry of this Order, the parties will submit competing proposals using the short-form discovery motion procedure set forth in DUCivR 37-1(a).

(ECF No. 105-1 at 3.)

         On May 26, 2017, Yardi also filed a Short-Form Motion for Entry of an Order Governing Discovery of Electronically Stored Information. (ECF No. 106.) Like Entrata, Yardi also attached a Proposed Order Governing Discovery of Electronically Stored Information. (ECF No. 106-2.) Yardi's proposed order contained the following provision:

The parties agree to work together in good faith to identify and negotiate a reasonable set of search terms and/or other search methodology to be applied to the parties' searches for ESI responsive to any and all RFPs. If the parties are unable to agree on a reasonable set of search terms or other search methodology within 30 days of the entry of this Order, the parties will submit competing proposals using the short-form discovery motion procedure set forth in DUCivR 37-1(a).

(ECF No. 106-2 at 3.)

         On May 30, 2017, Ms. Walker, one of Yardi's attorneys, wrote to Entrata's attorneys: “we are still conferring with our expert on TAR, and appreciate the information you provided during our call last week.” (ECF No. 257-1 at 2.) According to Entrata, “Yardi did not pose any further questions” regarding TAR until sometime in October 2017.[2] (See Cross Decl. ¶¶ 4-6, ECF No. 257 at 3-4.)

         On September 20, 2017, the Magistrate Court entered an Order Governing Discovery of Electronically Stored Information. (ECF No. 124.) The Order provided, in part:

[t]he parties are to work together in good faith to identify and negotiate a reasonable set of search terms and/or other search methodology to be used in searches of ESI. If the parties are unable to agree on a reasonable set of search terms or other search methodology within 30 days of the entry of this Order, the parties will submit competing ...

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